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Art Is Long; Copyrights Can Even Be Longer

It is there in the new 3-D version of “Titanic,” as it was in James Cameron’s original film: a modified version of Picasso’s painting “Les Demoiselles d’Avignon” aboard the ship as it sinks.

Of course that 1907 masterpiece was never lost to the North Atlantic. It has been at the Museum of Modern Art for decades — which is precisely the reason the Picasso estate, which owns the copyright to the image, refused Mr. Cameron’s original request to include it in his 1997 movie.

But Mr. Cameron used it anyway.

After Artists Rights Society, a company that guards intellectual property rights for more than 50,000 visual artists or their estates, including Picasso’s, complained, however, Mr. Cameron agreed to pay a fee for the right to use the image.

With the rerelease of “Titanic,” the society wants Mr. Cameron to pay again, asserting that the 3-D version is a new work, not covered under the previous agreement.

Filmmakers are not the only ones who sometimes run afoul of artists’ copyright law. In recent weeks Google Art Project, which just expanded its online collection of images to more than 30,000 works from 151 museums, agreed, because of copyright challenges, to remove 21 images it had posted.

Artists’ copyright is frequently misunderstood. Even if a painting (or drawing or photograph) has been sold to a collector or a museum, in general, the artist or his heirs retain control of the original image for 70 years after the artist’s death.

Think of a novel. You may own a book, but you don’t own the writer’s words; they remain the intellectual property of the author for a time.

So while MoMA owns the actual canvas of “Les Demoiselles,” the family of Picasso, who died in 1973, still owns the image. And under existing law, the estate will continue to own the copyright until 2043.

If someone wants to reproduce the painting — on a Web site, a calendar, a T-shirt, or in a film — it is the estate that must give its permission, not the museum. That is why, despite the expansion, Google Art Project still does not contain a single Picasso.

Indeed, few 20th-century artists are included in the project’s digital collection because copyright owners have not yet given permission. “We don’t want to prevent Google from showing the work, but they won’t enter into negotiations with us,” Mr. Feder said.

The Art Project’s position is that it is the responsibility of each museum to get copyright permission. “Google is placing the burden and onus on the museum, which is unfair to them and unfair to the artists,” Mr. Feder said.

Photo

Kate Winslet's character unpacks Picasso’s painting “Les Demoiselles d’Avignon” in "Titanic." James Cameron, the film's director, paid a fee for the right to use the image.Credit
Joshua Bright for The New York Times

Robert Panzer, executive director of VAGA, a second company that represents the copyright interests of artists, said that Google was legally responsible for securing the permissions. “It’s a game that they should try to make it someone else’s responsibility,” said Mr. Panzer, whose group represents more than 7,000 artists worldwide.

The Toledo Museum of Art recently asked the Google Art Project to remove “Dancer Resting” (1940), by Henri Matisse, as well as 20 other images from its collection that were posted but are still under copyright.

“There had been some confusion on all sides,” said Kelly Garrow, director of communications for the Toledo museum. “We want those works on the Art Project, but there needs to be some type of agreement to make that happen.”

Mr. Panzer, whose group is currently doing a review of all the work posted on the Art Project, said the underlying question was what Google’s business plans are in the long term: “We have to make sure that the artists’ interests from an aesthetic point of view and a commercial point of view are protected.”

Amit Sood, head of the Google Art Project, said it had decided early on to focus on its partnerships with museums. “We have been approached by commercial organizations who wanted to sell us content, but we chose to work directly with the museums,” Mr. Sood said. “We believe they are in the best position to assess rights status and we are happy to work with them to address any concerns.”Groups representing authors and publishers have been trying for years to come to an agreement with Google over its plan to digitize every book published. But after a federal judge threw out a proposed settlement in 2011, citing copyright and monopoly concerns, no agreement is in sight.

Raymond Dowd, a lawyer who has represented both sides on copyright questions, said of the Google Art Project: “Every artist is going to have a different view of it. Some will think it’s the greatest thing in the world and others will be horrified, just as the writers were, and just as musicians have been.”

Copyright law covers everything from reproductions in books to those used on keychains. “We try to acquire as much information as we can about a project, and then we go to the estate,” Mr. Feder of Artists Right Society explained. His organization, like VAGA, takes a percentage of the fee, which varies depending on the use.

Sometimes artists or estates want input. In the 2011 film “Tower Heist,” for example, the estate of Dan Flavin sent an expert to oversee the construction of a Flavin light installation that was recreated on the set.

Often celebrated masterpieces end up as nothing more than background scenery. That Alexander Calder you may have noticed in “The Muppets,” the Charles Roka in “The Girl With the Dragon Tattoo” or the Noguchi in “Friends With Benefits” were all used with the permission of Artists Rights Society. Paul Klee’s “Mask of Fear,” for instance, will make its film debut later this year in “Cloud Atlas” with Tom Hanks, Halle Berry and Natalie Portman.

Some news media outlets, including The New York Times, have agreements with the companies that set the terms under which they can make use of copyrighted images from the artists the companies represent.

In about 40 percent of its cases, the society ends up trying to prevent the use of an image, Mr. Feder said. Multimillion-dollar movie productions can present a challenge, however. Given the money involved, filmmakers are sometimes willing to risk the expense of a lawsuit and penalties after the movie’s release.

When making “Basquiat,” the 1996 biographical film about the painter Jean-Michel Basquiat, for example, Mr. Feder said that the film’s director, Julian Schnabel, ignored the objections of the artist’s father and created paintings in Basquiat’s style for his movie. Using these sorts of “derivative” images is also prohibited by copyright law, but Mr. Schnabel used them anyway, Mr. Feder said. In the end, Mr. Basquiat declined to sue.

Other filmmakers have tried to comply with family requests. Ismail Merchant and James Ivory sent the Picasso family a script of their 1996 film, “Surviving Picasso,” and then flew to Paris to make their case in person. But the estate was unhappy that Picasso was portrayed as an inconsiderate womanizer, so it refused to grant permission. Instead, to recreate the aesthetic atmosphere, the filmmakers used work by Picasso’s contemporaries, Matisse and Braque.

Mr. Feder said that when he went to see “Titanic 3-D” recently, he noticed one revision that he appreciates: A fleeting shot of “Les Demoiselles” going underwater has been replaced by Edgar Degas’s work “L’Étoile” — which was also never on the ship but is at least a painting already in the public domain.

A version of this article appears in print on April 25, 2012, on page C1 of the New York edition with the headline: Art Is Long; Copyrights Can Even Be Longer. Order Reprints|Today's Paper|Subscribe